In R (Timmins) v Gedling Borough Council and another [2016] EWHC 220 (Admin) a member of a local residents’ group sought judicial review of the decision to grant planning permission for a crematorium in the green belt. The claim related to the redetermination by the council of a previously quashed permission (R (Timmins) v Gedling Borough Council [2015] EWCA Civ 10). Several crematorium development applications had been refused locally (and all upheld on appeal on the basis of an absence of overriding need for additional facilities). The original permission was quashed on the basis that cemetery should be treated as inappropriate development for NPPF green belt policy purposes.
The authority had considered the application alongside an alternative scheme for a site 200 yards away. The competing applications had been considered with the benefit of separate reports on each and one on need. The developer of the competing site had appealed, unsuccessfully, against its own refusal. The developer of the scheme to which the claim related had amended its application to remove a cemetery element, following which the authority resolved to grant permission.
The claim was brought on five grounds, including misapplication of national policy in relation to the very special circumstances exception for green belt development, errors of law in relation to the inspector’s decision on the competitors’ scheme and errors and misunderstandings in relation to the analysis of need for additional cremation facilities. The officer’s report was alleged to be seriously misleading. A large non-green belt site had not been evaluated as an alternative.
The committee report had recommended that substantial weight was given to the inspector’s previous conclusions on need. It expressed doubt about whether the appeal had dealt thoroughly with the evidence (and noted new evidence). It concluded that by serving an additional 94,000 people who otherwise would not have adequate access to crematorium facilities there would be a very special circumstance in line with the appellants conclusions that the adequate provision of crematoria is an essential need and a planning consideration of the highest order. It also concluded that there were no alternative ways of meeting the need with less impact.
Rejecting the claim, Patterson J held that: firstly, the previous appeal decisions had been taken with little opportunity to fully review all the need evidence (and the committee report gave appropriate guidance); secondly, the exercise of planning judgment in analysing existing and future need was appropriate and not open to legal challenge in the circumstances (R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567); thirdly, there were real constraints to the suitability of the single non-green belt alternative site which the Council had been entitled to have regard to.
The case is an illustration of the way that significant needs for essential demographic requirements can found the case for very special circumstances for green belt element.
Roy Pinnock is a partner in the planning and public law team at Dentons
